Exhibit 10.5


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT (the
“Agreement”) is made and entered into this
        day of
              ,
2004, between Iteris Holdings, Inc., a Delaware corporation (the “Company”),
and
                                               
(“Indemnitee”).


 


A.                                   Indemnitee,
as a member of the Company’s Board of Directors and/or an officer of the
Company, performs valuable services for the Company;


 


B.                                     The
Company and Indemnitee recognize the continued difficulty in obtaining
liability insurance for corporate directors, officers, employees, controlling
persons, agents and fiduciaries, the significant increases in the cost of such
insurance and the general reductions in the coverage of such insurance.


 


C.                                     The
Company and Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees, controlling
persons, agents and fiduciaries to expensive litigation risks at the same time
as the availability and coverage of liability insurance has been severely
limited.


 


D.                                    The
stockholders of the Company have adopted Bylaws (the “Bylaws”) providing
for the indemnification of the officers, directors, agents and employees of the
Company to the maximum extent authorized by Section 145 of the Delaware
General Corporation Law, as amended (“DGCL”).


 


E.                                      Indemnitee
does not regard the current protection available for the Company’s directors,
officers, employees, controlling persons, agents and fiduciaries as adequate
under the present circumstances, and Indemnitee and other directors, officers,
employees, controlling persons, agents and fiduciaries of the Company may not
be willing to serve or continue to serve in such capacities without additional
protection.


 


F.                                      The
Bylaws and the DGCL, by their non-exclusive nature, permit contracts between
the Company and its directors, officers, employees, controlling persons, agents
or fiduciaries with respect to indemnification of such directors.


 


G.                                     The
Company (i) desires to attract and retain the involvement of highly qualified
individuals, such as Indemnitee, to serve the Company and, in part, in order to
induce Indemnitee to be involved with the Company, and (ii) wishes to provide
for the indemnification and advancing of expenses to Indemnitee to the maximum
extent permitted by law.


 


H.                                    In
view of the considerations set forth above, the Company desires that Indemnitee
be indemnified by the Company as set forth herein.


 


NOW, THEREFORE, in
consideration of Indemnitee’s service to the Company, the parties hereto agree
as follows:


 


1.                                      Indemnity
of Indemnitee.  The Company
hereby agrees to indemnify Indemnitee to the fullest extent permitted by law,
even if such indemnification is not specifically authorized


 

















 


by the other provisions of this Agreement, the Company’s Certificate of
Incorporation (the “Certificate”), the Company’s Bylaws or by statute.
In the event of any change after the date of this Agreement in any applicable
law, statute or rule which expands the right of a Delaware corporation to
indemnify a member of its Board of Directors or an officer, employee,
controlling person, agent or fiduciary, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change. In the event of any change in any applicable law, statute or rule
which narrows the right of a Delaware corporation to indemnify a member of its
Board of Directors or an officer, employee, agent or fiduciary, such change, to
the extent not otherwise required by such law, statute or rule to be applied to
this Agreement, shall have no effect on this Agreement or the parties’ rights
and obligations hereunder except as set forth in Section 9 hereof.


 


2.                                      Additional
Indemnity.  The Company hereby
agrees to hold harmless and indemnify the Indemnitee:


 


(a)                                  against
any and all expenses incurred by Indemnitee, as set forth in Section 3(a)
below; and


 


(b)                                 otherwise
to the fullest extent not prohibited by the Certificate, the Bylaws or the
DGCL.


 


3.                                      Indemnification
Rights.


 


(a)                                  Indemnification
of Expenses.  The Company shall
indemnify and hold harmless Indemnitee, together with Indemnitee’s partners,
affiliates, employees, agents and spouse and each person who controls any of
them or who may be liable within the meaning of Section 15 of the
Securities Act of 1933, as amended (the “Securities Act”), or
Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), to the fullest extent permitted by law if Indemnitee was or is or
becomes a party to or witness or other participant in, or is threatened to be
made a party to or witness or other participant in, any threatened, pending or
completed action, suit, proceeding or alternative dispute resolution mechanism,
or any hearing, inquiry or investigation that Indemnitee and the Company
believe might lead to the institution of any such action, suit, proceeding or
alternative dispute resolution mechanism, whether civil, criminal,
administrative, investigative or other (hereinafter a “Claim”) against
any and all expenses (including attorneys’ fees and all other costs, expenses
and obligations incurred in connection with investigating, defending, being a
witness in or participating in (including on appeal), or preparing to defend,
be a witness in or participate in, any such action, suit, proceeding,
alternative dispute resolution mechanism, hearing, inquiry or investigation,
judgments, fines, penalties and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be unreasonably
withheld) of such Claim and any federal, state, local or foreign taxes imposed
on Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement (collectively, hereinafter “Expenses”), including all
interest, assessments and other charges paid or payable in connection with or
in respect of such Expenses, incurred by Indemnitee by reason of (or arising in
part out of) any event or occurrence related to the fact that Indemnitee is or
was a director, officer, employee, controlling person, agent or fiduciary of
the Company or any subsidiary of the Company, or is or was serving at the
request of the Company as a director, officer, employee, controlling person,


 


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agent or fiduciary of another corporation, partnership, joint venture,
trust or other enterprise, or by reason of any action or inaction on the part
of Indemnitee while serving in such capacity including, without limitation, any
and all losses, claims, damages, expenses and liabilities, joint or several
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit, proceeding or any
claim asserted) under the Securities Act, the Exchange Act or other federal or
state statutory law or regulation, at common law or otherwise, which relate
directly or indirectly to the registration, purchase, sale or ownership of any
securities of the Company or to any fiduciary obligation owed with respect thereto
(hereinafter an “Indemnifiable Event”). 
Such payment of Expenses shall be made by the Company as soon as
practicable but in any event no later than twenty-five (25) days after written
demand by Indemnitee therefor is presented to the Company.


 


(b)                                 Reviewing
Party.  Notwithstanding the
foregoing, (i) the obligations of the Company under Section 2 shall be
subject to the condition that the Reviewing Party (as described in
Section 11(e) hereof) shall not have determined (in a written opinion, in
any case in which the Independent Legal Counsel as defined in
Section 11(d) hereof is involved) that Indemnitee would not be permitted
to be indemnified under applicable law, and (ii) and Indemnitee acknowledges
and agrees that the obligation of the Company to make an advance payment of
Expenses to Indemnitee pursuant to Section 4(a) (an “Expense Advance”)
shall be subject to the condition that, if, when and to the extent that the
Reviewing Party determines that Indemnitee would not be permitted to be so
indemnified under applicable law, the Company shall be entitled to be
reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all
such amounts theretofore paid; provided, however, that if Indemnitee has
commenced or thereafter commences legal proceedings in a court of competent
jurisdiction to secure a determination that Indemnitee should be indemnified
under applicable law, any determination made by the Reviewing Party that
Indemnitee would not be permitted to be indemnified under applicable law shall
not be binding and Indemnitee shall not be required to reimburse the Company
for any Expense Advance until a final judicial determination is made with
respect thereto (as to which all rights of appeal therefrom have been exhausted
or lapsed).  Indemnitee’s obligation to
reimburse the Company for any Expense Advance shall be unsecured and no
interest shall be charged thereon.  If
there has not been a Change in Control (as defined in Section 11(c)
hereof), the Reviewing Party shall be selected by the Board of Directors, and
if there has been such a Change in Control (other than a Change in Control
which has been approved by a majority of the Company’s Board of Directors who
were directors immediately prior to such Change in Control), the Reviewing
Party shall be the Independent Legal Counsel referred to in Section 3(e)
hereof.  If there has been no
determination by the Reviewing Party or if the Reviewing Party determines that
Indemnitee substantively would not be permitted to be indemnified in whole or
in part under applicable law, Indemnitee shall have the right to commence
litigation seeking an initial determination by the court or challenging any
such determination by the Reviewing Party or any aspect thereof, including the
legal or factual bases therefor, and the Company hereby consents to service of
process and to appear in any such proceeding. 
Any determination by the Reviewing Party otherwise shall be conclusive
and binding on the Company and Indemnitee.


 


(c)                                  Contribution.  If the indemnification provided for in
Section 3(a) above for any reason is held by a court of competent
jurisdiction to be unavailable to an Indemnitee in respect of any losses,
claims, damages, expenses or liabilities referred to therein, then the


 


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Company, in
lieu of indemnifying Indemnitee thereunder, shall contribute to the amount paid
or payable by Indemnitee as a result of such losses, claims, damages, expenses
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Indemnitee, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and
Indemnitee in connection with the action or inaction which resulted in such
losses, claims, damages, expenses or liabilities, as well as any other relevant
equitable considerations.  In connection
with the registration of the Company’s securities, the relative benefits
received by the Company and Indemnitee shall be deemed to be in the same
respective proportions that the net proceeds from the offering (before
deducting expenses) received by the Company and the Indemnitee, in each case as
set forth in the table on the cover page of the applicable prospectus, bear to
the aggregate public offering price of the securities so offered.  The relative fault of the Company and
Indemnitee shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or Indemnitee and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.


 


The Company and Indemnitee agree that it would not be just and
equitable if contribution pursuant to this Section 3(c) were determined by
pro rata or per capita allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph.  In
connection with the registration of the Company’s securities, in no event shall
an Indemnitee be required to contribute any amount under this Section 3(c)
in excess of the lesser of (i) that proportion of the total of such losses,
claims, damages or liabilities indemnified against equal to the proportion of
the total securities sold under such registration statement which is being sold
by Indemnitee or (ii) the proceeds received by Indemnitee from its sale of
securities under such registration statement. 
No person found guilty of fraudulent misrepresentation (within the
meaning of Section 10(f) of the Securities Act) shall be entitled to
contribution from any person who was not found guilty of such fraudulent
misrepresentation.


 


(d)                                 Survival
Regardless of Investigation.  The
indemnification and contribution provided for herein will remain in full force
and effect regardless of any investigation made by or on behalf of Indemnitee
or any officer, director, employee, agent or controlling person of Indemnitee.


 


(e)                                  Change
in Control.  After the date hereof,
the Company agrees that if there is a Change in Control of the Company (other
than a Change in Control which has been approved by a majority of the Company’s
Board of Directors who were directors immediately prior to such Change in
Control) then, with respect to all matters thereafter arising concerning the
rights of Indemnitee to payments of Expenses under this Agreement or any other
agreement or under the Company’s Certificate or Bylaws as now or hereafter in
effect, Independent Legal Counsel (as defined in Section 11(d) hereof)
shall be selected by Indemnitee and approved by the Company (which approval
shall not be unreasonably withheld). 
Such counsel, among other things, shall render its written opinion to
the Company and Indemnitee as to whether and to what extent Indemnitee would be
permitted to be indemnified under applicable law.  The Company agrees to abide by such opinion and to pay the
reasonable fees of the Independent Legal Counsel


 


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referred to
above and to fully indemnify such counsel against any and all reasonable
expenses (including attorneys’ fees), claims, liabilities and damages arising
out of or relating to this Agreement or its engagement pursuant hereto.


 


(f)                                    Mandatory
Payment of Expenses. 
Notwithstanding any other provision of this Agreement, to the extent
that Indemnitee has been successful on the merits or otherwise, including,
without limitation, the dismissal of an action without prejudice, in the
defense of any action, suit, proceeding, inquiry or investigation referred to
in Section 3(a) hereof or in the defense of any claim, issue or matter
therein, Indemnitee shall be indemnified against all Expenses incurred by
Indemnitee in connection herewith.


 


4.                                      Expenses;
Indemnification Procedure.


 


(a)                                  Advancement
of Expenses.  The Company shall
advance all Expenses incurred by Indemnitee. 
The advances to be made hereunder shall be paid by the Company to
Indemnitee as soon as practicable but in any event no later than ten (10)
business days after written demand by Indemnitee therefor to the Company.


 


(b)                                 Notice/Cooperation
by Indemnitee.  Indemnitee shall
give the Company notice in writing in accordance with Section 15 of this
Agreement as soon as practicable of any Claim made against Indemnitee for which
indemnification will or could be sought under this Agreement.


 


(c)                                  No
Presumptions; Burden of Proof.  For
purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
Indemnitee did not meet any particular standard of conduct or have any
particular belief or that a court has determined that indemnification is not
permitted by applicable law.  In
addition, neither the failure of the Reviewing Party to have made a
determination as to whether Indemnitee has met any particular standard of
conduct or had any particular belief, nor an actual determination by the
Reviewing Party that Indemnitee has not met such standard of conduct or did not
have such belief, prior to the commencement of legal proceedings by Indemnitee
to secure a judicial determination that Indemnitee should be indemnified under
applicable law, shall be a defense to Indemnitee’s claim or create a presumption
that Indemnitee has not met any particular standard of conduct or did not have
any particular belief. In connection with any determination by the Reviewing
Party or otherwise as to whether Indemnitee is entitled to be indemnified
hereunder, the burden of proof shall be on the Company to establish that
Indemnitee is not so entitled.


 


(d)                                 Notice
to Insurers.  If, at the time of the
receipt by the Company of a notice of a Claim pursuant to Section 4(b)
hereof, the Company has liability insurance in effect which may cover such
Claim, the Company shall give prompt notice of the commencement of such Claim
to the insurers in accordance with the procedures set forth in each of the
Company’s policies.  The Company shall thereafter
take all necessary or desirable action to cause such insurers to pay, on behalf
of Indemnitee, all amounts payable as a result of such action, suit,
proceeding, inquiry or investigation in accordance with the terms of such
policies.


 


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(e)                                  Selection
of Counsel.  In the event the
Company shall be obligated hereunder to pay the Expenses of any Claim, the
Company shall be entitled to assume the defense of such Claim, with counsel
approved by the Indemnitee (which approval shall not be unreasonably withheld)
upon the delivery to Indemnitee of written notice of its election to do so.
After delivery of such notice, approval of such counsel by Indemnitee and the
retention of such counsel by the Company, the Company will not be liable to
Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same Claim; provided that (i) Indemnitee
shall have the right to employ Indemnitee’s counsel in any such Claim at
Indemnitee’s expense and (ii) if (A) the employment of counsel by Indemnitee
has been previously authorized by the Company, (B) Indemnitee shall have
reasonably concluded that there is a conflict of interest between the Company
and Indemnitee in the conduct of any such defense, or (C) the Company shall not
continue to retain such counsel to defend such Claim, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company.


 


5.                                      Nonexclusivity.  The indemnification provided by this
Agreement shall be in addition to any rights to which Indemnitee may be
entitled under the Company’s Certificate of Incorporation, its Bylaws, any
agreement, any vote of stockholders or disinterested directors, the DGCL, or
otherwise. The indemnification provided under this Agreement shall continue as
to Indemnitee for any action Indemnitee took or did not take while serving in
an indemnified capacity even though Indemnitee may have ceased to serve in such
capacity.


 


6.                                      No
Duplication of Payments.  The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against any Indemnitee to the extent Indemnitee
has otherwise actually received payment (under any insurance policy,
Certificate of Incorporation, Bylaw or otherwise) of the amounts otherwise indemnifiable
hereunder.


 


7.                                      Partial
Indemnification.  If any
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for any portion of Expenses incurred in connection with any
Claim, but not, however, for all of the total amount thereof, the Company shall
nevertheless indemnify Indemnitee for the portion of such Expenses to which
Indemnitee is entitled.


 


8.                                      Mutual
Acknowledgement.  The Company
and Indemnitee acknowledge that in certain instances, Federal law or applicable
public policy may prohibit the Company from indemnifying its directors,
officers, employees, controlling persons, agents or fiduciaries under this
Agreement or otherwise. Each Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company’s rights
under public policy to indemnify Indemnitee.


 


9.                                      Exceptions.  Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement:


 


(a)                                  Claims
Initiated by Indemnitee.  To
indemnify or advance expenses to any Indemnitee with respect to Claims
initiated or brought voluntarily by Indemnitee and not by way of defense,
except (i) with respect to actions or proceedings to establish or enforce a
right to


 


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indemnify under this Agreement or any other agreement or insurance
policy or under the Company’s Certificate of Incorporation or Bylaws now or
hereafter in effect relating to Claims for Indemnifiable Events, (ii) in
specific cases if the Board of Directors has approved the initiation or bringing
of such Claim, or (iii) as otherwise required under Section 145 of the
DGCL, regardless of whether Indemnitee ultimately is determined to be entitled
to such indemnification, advance expense payment or insurance recovery, as the
case may be; or


 


(b)                                 Claims
Under Section 16(b).  To
indemnify Indemnitee for expenses and the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Exchange Act or any similar successor statute; or


 


(c)                                  Claims
Excluded Under Section 145 of the DGCL.  To indemnify Indemnitee if (i) Indemnitee did not act in good
faith or in a manner reasonably believed by such Indemnitee to be in or not
opposed to the best interests of the Company, or (ii) with respect to any criminal
action or proceeding, Indemnitee had reasonable cause to believe Indemnitee’s
conduct was unlawful, or (iii) Indemnitee shall have been adjudged to be liable
to the Company unless and only to the extent the court in which such action was
brought shall permit indemnification as provided in Section 145(b) of the
DGCL; or


 


(d)                                 Other
Excluded Actions or Omissions. To indemnify Indemnitee for acts, omissions
or transactions for which Indemnitee is prohibited from receiving
indemnification under any other applicable law.


 


10.                               Period
of Limitations.    No legal action shall be brought and no
cause of action shall be asserted by or in the right of the Company against any
Indemnitee, any Indemnitee’s estate, spouse, heirs, executors or personal or
legal representatives after the expiration of five years from the date of
accrual of such cause of action, and any claim or cause of action of the
Company shall be extinguished and deemed released unless asserted by the timely
filing of a legal action within such five-year period; provided, however, that
if any shorter period of limitations is otherwise applicable to any such cause
of action, such shorter period shall govern.


 


11.                               Construction
of Certain Phrases.


 


(a)                                  For
purposes of this Agreement, references to the “Company” shall include,
in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees, agents or
fiduciaries, so that if Indemnitee is or was a director, officer, employee,
agent, control person, or fiduciary of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee, control person, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise,
Indemnitee shall stand in the same position under the provisions of this
Agreement with respect to the resulting or surviving corporation as Indemnitee
would have with respect to such constituent corporation if its separate
existence had continued.


 


(b)                                 For
purposes of this Agreement, references to “other enterprises” shall include
employee benefit plans; references to “fines” shall include any excise
taxes assessed on


 


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any Indemnitee
with respect to an employee benefit plan; and references to “serving at the
request of the Company” shall include any service as a director, officer,
employee, agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, employee, agent or fiduciary with
respect to an employee benefit plan, its participants or its beneficiaries; and
if any Indemnitee acted in good faith and in a manner Indemnitee reasonably
believed to be in the interests of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in a manner
“not opposed to the best interests of the Company” as referred to in this
Agreement.


 


(c)                                  For
purposes of this Agreement a “Change in Control” shall be deemed to have
occurred if (i) any “person” (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act), other than a trustee or other fiduciary
holding securities under an employee benefit plan of the Company or a
corporation owned directly or indirectly by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company,
(A) who is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 10% or more of the combined voting power
of the Company’s then outstanding Voting Securities, increases his or her
beneficial ownership of such securities by 5% or more over the percentage so
owned by such person, or (B) becomes the “beneficial owner” (as defined
in Rule 13d-3 under said Exchange Act), directly or indirectly, of securities
of the Company representing more than 20% of the total voting power represented
by the Company’s then outstanding Voting Securities, (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company and any new director whose
election by the Board of Directors or nomination for election by the Company’s
stockholders was approved by a vote of at least two-thirds of the directors
then still in office who either were directors at the beginning of the period
or whose election or nomination for election was previously so approved, cease
for any reason to constitute a majority thereof, or (iii) the stockholders of
the Company approve a merger or consolidation of the Company with any other
corporation other than a merger or consolidation which would result in the
Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into Voting Securities of the surviving entity) at least 80% of the total
voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
the stockholders of the Company approve a plan of complete liquidation of the Company
or an agreement for the sale or disposition by the Company of (in one
transaction or a series of transactions) all or substantially all of the
Company’s assets.


 


(d)                                 For
purposes of this Agreement, “Independent Legal Counsel” shall mean an
attorney or firm of attorneys, selected in accordance with the provisions of
Section 3(d) hereof, who shall not have otherwise performed services for
the Company or any Indemnitee within the last three years (other than with
respect to matters concerning the right of any Indemnitee under this Agreement,
or of other indemnitees under similar indemnity agreements).


 


(e)                                  For
purposes of this Agreement, a “Reviewing Party” shall mean any
appropriate person or body consisting of a member or members of the Company’s
Board of Directors or any other person or body appointed by the Board of
Directors who is not a party to the particular Claim for which Indemnitee are
seeking indemnification, or Independent Legal Counsel.


 


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(f)                                    For
purposes of this Agreement, “Voting Securities” shall mean any
securities of the Company that vote generally in the election of directors.


 


12.                               Counterparts.  This Agreement may be executed in one or
more counterparts, each of which shall constitute an original.


 


13.                               Binding
Effect; Successors and Assigns. 
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors, assigns,
including any direct or indirect successor by purchase, merger, consolidation
or otherwise to all or substantially all of the business and/or assets of the
Company, spouses, heirs, and personal and legal representatives. The Company
shall require and cause any successor (whether direct or indirect by purchase,
merger, consolidation or otherwise) to all, substantially all, or a substantial
part, of the business and/or assets of the Company, by written agreement in
form and substance satisfactory to Indemnitee, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform if no such succession had taken place.
This Agreement shall continue in effect with respect to Claims relating to
Indemnifiable Events regardless of whether any Indemnitee continues to serve as
a director, officer, employee, agent, controlling person, or fiduciary of the
Company or of any other enterprise, including subsidiaries of the Company, at
the Company’s request.


 


14.                               Attorneys’
Fees.  In the event that any
action is instituted by an Indemnitee under this Agreement or under any
liability insurance policies maintained by the Company to enforce or interpret
any of the terms hereof or thereof, any Indemnitee shall be entitled to be paid
all Expenses incurred by Indemnitee with respect to such action if Indemnitee
is ultimately successful in such action, and shall be entitled to the
advancement of Expenses with respect to such action, unless, as a part of such
action, a court of competent jurisdiction over such action determines that the
material assertions made by Indemnitee as a basis for such action were not made
in good faith or were frivolous. In the event of an action instituted by or in
the name of the Company under this Agreement to enforce or interpret any of the
terms of this Agreement, Indemnitee shall be entitled to be paid all Expenses
incurred by Indemnitee in defense of such action (including costs and expenses
incurred with respect to Indemnitee counterclaims and cross-claims made in such
action), and shall be entitled to the advancement of Expenses with respect to
such action, unless, as a part of such action, a court having jurisdiction over
such action determines that the Indemnitee’s material defenses to such action
were made in bad faith or were frivolous.


 


15.                               Notice.  All notices and other communications
required or permitted hereunder shall be in writing, shall be effective when
given, and shall in any event be deemed to be given (a) five (5) calendar days
after deposit with the U.S. Postal Service or other applicable postal service,
if delivered by first class mail, postage prepaid, (b) upon delivery, if
delivered by hand, (c) one business day after the business day of deposit with
Federal Express or similar overnight courier, freight prepaid, or (d) one day
after the business day of delivery by facsimile transmission, if deliverable by
facsimile transmission, with copy by first class mail, postage prepaid, and
shall be addressed if to Indemnitee, at Indemnitee’s address as set forth
beneath Indemnitee’s signature to this Agreement and if to the Company at the
address of its principal


 


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corporate offices (attention: Chief Executive Officer) or at such other
address as such party may designate by ten (10) calendar days’ advance written
notice to the other party hereto.


 


16.                               Consent
to Jurisdiction.  The Company
and Indemnitee each hereby irrevocably consent to the jurisdiction of the
courts of the State of Delaware for all purposes in connection with any action
or proceeding which arises out of or relates to this Agreement and agree that
any action instituted under this Agreement shall be commenced, prosecuted and
continued only in the Court of Chancery of the State of Delaware in and for New
Castle County, which shall be the exclusive and only proper forum for
adjudicating such a claim.


 


17.                               Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision within a single section, paragraph or sentence) are held by a court
of competent jurisdiction to be invalid, void or otherwise unenforceable, and
the remaining provisions shall remain enforceable to the fullest extent
permitted by law. Furthermore, to the fullest extent possible, the provisions
of this Agreement (including, without limitations, each portion of this
Agreement containing any provision held to be invalid, void or otherwise
unenforceable, that is not itself invalid, void or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.


 


18.                               Choice
of Law.  This Agreement shall be
governed by and its provisions construed and enforced in accordance with the
laws of the State of Delaware, as applied to contracts between Delaware
residents, entered into and to be performed entirely within the State of
Delaware, without regard to the conflict of laws principles thereof.


 


19.                               Subrogation.  In the event of payment under this
Agreement, the Company shall be subrogated to the extent of such payment to all
of the rights of recovery of Indemnitee who shall execute all documents
required and shall do all acts that may be necessary to secure such rights and
to enable the Company effectively to bring suit to enforce such rights.


 


20.                               Amendment
and Termination.  No amendment,
modification, termination or cancellation of this Agreement shall be effective
unless it is in writing signed by all parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.


 


21.                               Integration
and Entire Agreement.  This
Agreement sets forth the entire understanding between the parties hereto and
supersedes and merges all previous written and oral negotiations, commitments,
understandings and agreements relating to the subject matter hereof between the
parties hereto.


 


22.                               No
Construction as Employment Agreement. 
Nothing contained in this Agreement shall be construed as giving the
Indemnitee any right to be retained in the employ of the Company or any of its
subsidiaries.


 


23.                               Corporate
Authority.  The Board of
Directors of the Company has approved the terms of this Agreement.


 


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IN WITNESS WHEREOF,
the parties hereto have executed this Agreement on and as of the day and year
first above written.


 


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  ITERIS HOLDINGS, INC.,

  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Gregory A. Miner,

  
	
   

  	
   

  	
  Chief Executive Officer, Chief Financial

  Officer and Secretary

  
	
   

  	
   

  
	
   

  	
  Address:

  	
  1515 South Manchester Avenue

  
	
   

  	
   

  	
  Anaheim, California  92802

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Signature

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Print Name

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
							



 


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